This appeal follows a judgment entered after a jury verdict in
favor of plaintiff/appellee against defendant/appellant, Tucson
Estates, Inc. Both the verdict and judgment were also against
the appellant, National Gypsum Co., a Delaware corporation. Neither
party mentions the latter company in their briefs so we likewise
ignore it here. References to the appellant which follow are
to Tucson Estates.

The appellee suffered serious bodily injury when he slipped
and fell in the men's locker room/shower room facility adjacent
to a swimming pool at Tucson Estates, a mobile home
park which maintained these facilities for residents.

There were two pools in the mobile home park, one in an area
where older, retired residents live and the other in an area occupied
by families and consequently used by younger residents. Although
there is some mixing of the two groups' the facility where the
accident occurred was used by and maintained mostly for the retirees.

The appellee, who was 75 years old, had been a resident for 10
years and he used the pool and facilities on a regular basis.
On June 19, 1979, he had showered, gone to the pool, and then
returned to get some tissue to blow his nose. Although he wore
sandals while showering and going to the pool from the shower room,
he did not put them on to get the toilet tissue. One of the reasons
he wore the sandals was to prevent slipping. He had fallen in the
same area before and knew the floor was slippery. On the way
back to the pool he stopped to visit with another resident
who was sitting on a locker room bench. He then took a
step or two to walk away when his feet went out from
under him and he fell backwards "like a ton of bricks."
He described the sensation as similar to "stepping
on ice." The floor was wet in the vicinity of the fall.
Evidence revealed two other falls in the same general location
under almost identical conditions. These were in 1977 or 1978.
Although the appellee had no knowledge of the prior accidents,
the appellant was notified after each one. After the earlier
one the injured party was told that the floor was slippery
due to "soap scum" and that the floor would be scored and
roughened so falls would not continue to happen. After the second
fall the appellant's manager said, after examining the floor, that
its "anti-slip ingredients" had either worn out or been covered over.

The appellant contends that:

1) The condition of the shower room was open and obvious and
therefore not unreasonably dangerous and the trial court
should have granted its motion for directed verdict,

2) The evidence of the prior accidents should not
have been admitted, and

3) It was error to instruct the jury that a regulation of the
Arizona Department of Health Services could be considered in
deciding if the appellant was negligent.

We affirm. We consider the three issues in the order presented.

The parties agree that the appellee was an invitee and the jury
was so instructed. The appellant's first contention, that the
wet and slippery floor was an open and obvious danger
and therefore not unreasonably dangerous, is not
a complete statement of Arizona law. In
Cummings v. Prater,
95 Ariz. 20, 386 P.2d 27 (1963),
our supreme court said:

Of course, the bare fact that a condition is "open and obvious"
does not necessarily mean that it is not unreasonably dangerous.
[citations omitted] The open and obvious condition is merely
a factor to be taken into consideration in determining whether
the condition was unreasonably dangerous. (emphasis in original)
Id. at 27, 386 P.2d 27.

Although summary judgment in favor of the defendant was affirmed in
Prater,
the supreme court recognized that the duty of the landowner
to an invitee must be measured against the unreasonableness
of the danger of the condition. The court also held that the
landlord-defendant in that case was under a duty of ordinary
care to repair or warn the tenant. In the instant case, the
evidence in support of the verdict shows not only reason to
suspect but actual knowledge of a dangerous condition.

The Court of Appeals, Division One, in
Murphy v. El Dorado Bowl, Inc.,
2 Ariz. App. 341, 409 P.2d 57 (1965)
and our court in
Brierley v. Anaconda Company,
21 Ariz. App. 7, 515 P.2d 34 (1973)
and
Forbes v. Romo,
123 Ariz. 548, 601 P.2d 311 (App.1979),
have cited with approval § 343(A) of the Restatement
of Torts 2d (1965). In
Murphy,
supra,
our court held it error for the trial court to instruct
that the landowner has no duty to warn invitees of
conditions which are open and obvious without
instructing that the owner has a duty to warn of such conditions
if the owner can and should anticipate that the dangerous condition
will cause harm to the invitee notwithstanding its open and obvious
condition. In the instant case, the evidence presented a jury
question on whether the appellant should have anticipated harm
to a person in the appellee's position despite its open and obvious
condition.

The Restatement, Sec. 343(A)(1), states:

(1) A possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge or obviousness.
(emphasis supplied)

Comment (f) to this section discusses the final clause, beginning
with the word "unless":

F. There are, however, cases in which the possessor of land can
and should anticipate that the dangerous condition will cause
physical harm to the invitee notwithstanding its known or obvious
danger. In such cases, the possessor is not relieved of the duty
of reasonable care which he owes to the invitee for his protection.
This duty may require him to warn the invitee, or to take other
reasonable steps to protect him, against the known or obvious
condition or activity, if the possessor has reason to expect
that the invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious
dangers may arise, for example, where the possessor has reason
to expect that the invitee's attention may be distracted, so
that he will not discover what is obvious, or will forget what
he has discovered, or fail to protect himself against it. Such
reason may also arise where the possessor has reason to expect
that the invitee will proceed to encounter the known or obvious
danger because to a reasonable man in his position the advantages
of doing so would outweigh the apparent risk.

The evidence here is such that the exceptions to the open and
obvious danger come into play. The evidence shows that the area
where the appellee fell was a social gathering place for male
residents of the area. The presence of other persons together
with the inevitable visiting and camaraderie that occurred were
known to the appellant. It should have expected harm from the
dangerous condition of the floor because this distraction might
cause the invitees to forget the slippery condition of the floor
or fail to protect themselves against it. Further, the appellee
had reason to expect that the retired residents would proceed
on an almost daily basis to encounter the slippery floor so they
could swim and use the facility despite the apparent risk. The
facts of this case are a classic example of the restatement proposition
as explained in the comment. The trial court properly instructed
the jury in the language of the Restatement and the Arizona decisions.

In the exercise of ordinary care to prevent injury
from the known dangerous condition, the appellee should also
have considered the fact that the facility was used predominantly
by older retired persons.
SeeCampbell v. Hughes Provision Co.,
153 Ohio St. 9, 90 N.E.2d 694 (1950).

"Where one has actual . . . knowledge that another, who may be
injured by his act or omission, is afflicted with some
physical incapacity which may affect his ability to observe
or avoid danger, such as . . . old age . . ., the fact of
such incapacity is a matter proper for consideration in determining
whether or not sufficient care has been exercised with
respect to such person."
65 C.J.S. Negligence, § 12(a) at 587-588 (1966).
See also
57 Am.Jur.2d Negligence, § 86 (1971).

We distinguish the Arizona decisions relied on by the appellee
since none of them fall within the exception found in
§ 343(A)(1) of the Restatement providing that the
possessor should anticipate the harm despite the knowledge
of the person injured or the open
and obvious nature of the condition.
SeeMcFarland v. Kahn,
123 Ariz. 62, 597 P.2d 544 (1979);
Cummings v. Prater,
supra;
Bisnett v. Mowder,
114 Ariz. 213, 560 P.2d 68 (App.1977).
Likewise, the two Florida decisions cited,
Andrew v. Narber,
59 So.2d 869 (Fla.1952)
and
Tweedale v. City of St. Petersburg,
125 So.2d 920 (Fla.App.1961),
do not discuss this legal proposition.

Turning next to the contention that the evidence of the prior
accidents was inadmissible, we disagree with the appellant's
arguments. The evidence was more than sufficient to establish
foundation. Not only were the conditions similar, the accidents
occurred in the same place.
SeeSlow Development Company v. Coulter,
88 Ariz. 122, 353 P.2d 890 (1960).
The prior accidents were not too remote in time. There
was evidence that the floor was essentially unchanged. Contrary
to the appellant's argument, there was evidence that the appellant
had notice of both of the prior accidents. The trial court has
considerable discretion in the admission of prior accidents.
Burgbacher v. Mellor,
112 Ariz. 481, 543 P.2d 1110 (1976).
We find no abuse of that discretion here. The evidence
was admissible both to show notice and to show that the wet,
slippery floor was unreasonably dangerous.

Finally, the appellant contends it was error to instruct the
jury that it could consider a regulation of the Health Services
Department in determining whether or not the appellant was
negligent. The regulation reads as follows:

1. Rules and regulations for public and semi-public bathing places,
Article 2, Part 8.

Section 2-8-3. Design Standards and Specifications

Reg. 2-8-3.6 Bathhouse and Dressing Room Facilities

Reg. 2-8-3.6(A)(6):

6. Floors shall be of nonslip construction, free of open cracks
and sloped to adequate drains. (Floor slope to be 1/4 inch to
the foot.)

Appellant's objection is that the term "nonslip" was not defined
in the regulation. The only authority cited in support of this
proposition,
Moore v. McCarty's Heritage, Inc.,
62 Ohio App.2d 89, 404 N.E.2d 167 (1978)
is inapposite. The Ohio court found it was error to
charge the jury that a violation of certain sections
of the county building code was negligence per se.
By no stretch of the imagination does the case stand
for the proposition that words contained in such regulations
must be defined. In fact, the opinion says the instruction should
have been given in language similar to that used by the trial
court sub judice. We see no error in giving the instruction.
The jury could give the ordinary, common meaning to the word
nonslip without further definition in the regulation.
Cf.Noland v. Wootan,
102 Ariz. 192, 427 P.2d 143 (1967).
Nonslip is defined as "designed to reduce or prevent slipping",
Webster's Third New International Dictionary (1971).
Absent a request to give any further instruction, such as one
defining the term, and absent evidence in the record, the language
in statutes is to be given the meaning that would be understood
by the ordinary person.
McIntyre v. Mohave County,
127 Ariz. 317, 620 P.2d 696 (1980).
We find no error in giving the instruction.